Excerpt:(i) criminal - order of retrial - sections 403, 417, 423 and 439 of criminal procedure code, 1898 - revision petition filed by accused against high court order of retrial of offences for which he has been acquitted - whether high court has power to order retrial - accused acquitted on charges for which retrial ordered - no appeal preferred against acquittal - held, high court is not open to order retrial.
(ii) autrefois acquit - sections 403, 423 and 439 of criminal procedure code, 1898 - whether accused can plead 'autrefois acquit' in case of retrial - lower court has acquitted accused on charges - retrial on same charges - state not appealing against acquittal - held, accused can plead bar of 'autrefois acquit' in retrial.
- - the accused filed a fail appeal against this conviction.....jaganmohan reddy, j.1. the revision petitioner was charged before the sessions judge, visakhapatnam, for an offence of murder under section 302. indian penal code, and robbery under section 392, indian penal code, but was acquitted of both those charges. while thus acquitting the accused, the sessions judge found the accused guilty of an offence under section 411, indian penal code, and sentenced her to two yeara rigorous imprisonment. the accused filed a fail appeal against this conviction and sentence, which came up for hearing before our brother sanjeeva row navudu, j., who set aside the conviction and sentence and remanded the case to the court of sessions, visakhapatnam, for retrial on the charges already framed by the said court at the trial of the petitioner, viz., under sections......

Judgment:

Jaganmohan Reddy, J.

1. The Revision petitioner was charged before the Sessions Judge, Visakhapatnam, for an offence of murder under Section 302. Indian Penal Code, and robbery under Section 392, Indian Penal Code, but was acquitted of both those charges. While thus acquitting the accused, the Sessions Judge found the accused guilty of an offence under Section 411, Indian Penal Code, and sentenced her to two yeara rigorous imprisonment. The accused filed a fail appeal against this conviction and sentence, which came up for hearing before our brother Sanjeeva Row Navudu, J., who set aside the conviction and sentence and remanded the case to the Court of Sessions, Visakhapatnam, for retrial on the charges already framed by the said Court at the trial of the petitioner, viz., under Sections. 302 and 392, Indian Penal Code, with the following observations :

'After having carefully thought over the merits of the case, the evidence for the prosecution as well as the statements of the appellant, I am satisfied that gross miscarriage of justice has resulted in this case and the only way to rectify this is to order the retrial of thp case on the original charges under Section 302. Indian Penal Code and Section 92. Indian Penal Code, framed by the Sessions Judge, so that the accused may be property tried thereon and, if found guilty, convicted for the offence or offences proved by the evidence to have been committed by the accused'.

In the compliance with this direction of the High Court, the Additional Sessions Judge, with a view to try the accused charged her under Sections 302 and 392, Indian Penal Code, on 3-11-1958. On the same day, the accused filed a petition stating that she was acquitted on the aforesaid charges by the Sessions Judge, Visakhapatnam, that hec appeal was against her conviction under Section 411 and not against the acquittal on the charges under Sections 302 and 392, Indian Penal Code, and consequently the High Count dealt with the appeal under Sec-lion 423(1)(b) and not under Section 423(1)(a), Criminal Procedure Code, that in the circumstances, it was contended, the orders of the High Court directing retrial are not only without jurisdiction, bun also entitles her to raise the plea of Autrefois Acquit and that the retrial is barred by Section 403, Criminal Procedure Code. The learned Sessions Judge, while dismissing this petition, remarked :

'I must observe even at the outset that I a(tm) not entitled to embark upon a consideration of the merits and demerits of the respective contentions urged for the parties in view of the unequivocal directions given by the Court of Appeal, viz., the High Court, in Criminal Appeal No. 237 of 1957 on its file, for a retrial of the accused on the same charges on which she was tried originally. If the petitioner felt aggrieved with the directions given by the High Court, her remedy was to have moved the High Court itself and she cannot now be permitted to raise the objection in question before this Court'.

The petitioner, therefore, came up in revision to this Court. When the revision came up for hearing our brother Basi Reddy, J,, referred the case to Division Bench in view of the following two important questions of law arising in that case, viz. :

'(1) Where an accused is tried by a Sessions Court on charges of murder and robbery, and the Sessions Court acquits the accused of those charges and convicts her only of an offence under Section 411, Indian Penal Code, and the accused appeals to the High Court against the conviction and sentence but the State Government does not appeal against the acquittal of the accused on charge of murder and robbery, is it open to the High Court to sot aside the conviction and sentence under Section 411, Indian Penal Code and order the accused to be retried on the charges of murder and robbery?

(2) When in pursuance of the order of the High Court, the Sessions Court again frames charges under Sections 302 and 392, Indian Penal Code, against the accused, is it or is it not open to the accused to plead the statutory bar of Autrefois Acquit under Section 403, Criminal Procedure Code?' The revision was initially heard by a Bench consisting of My Lord the Chief Justice and one of us, and it was thought desirable in view of the judicial conflict to refer it to a Full Bench. The matter was accordingly referred to the Full Bench and notice was also given to the Advocate-General having regard to the importance of the questions Involved.

2. The learned Public Prosecutor, Mr. R. v. Rama Rao. after the due notice to the petitioner's advocate, at the outset raised a preliminary objection to the maintainability of the revision and questioned the competence of the Full Bench 'to discuss anv question arising out of the said criminal revision'. His contention is that neither the Letters Patent, nor the Criminal Procedure Code, provides for a review nf the High Court's orders, nor is there any provision under which file correctness of that order can be gone into. In the circumstances, Section 369. Criminal Procedure Code, is a bar to 'any consideration of the judgment of a High Court.

Reliance has also been placed on Section 430, Criminal Procedure Code, which says that judgment and orders passed by an appellate Court upon appeals shall be final, except in the cases provided for in Section 417 and Chapter XXXII. In so far as the provision applies to the Subordinate Courts, they cannot be final, because they arc subject to Section 435 and the provisions of Chapte> XXXIL

As far as the High Court judgments are concerned, it is submitted that the orders passed in a matter before it are final. In the circumstances, he contends that the only remedy for the petitioner, if she is aggrieved by the order of the High Court, is by way of appeal to the Supreme Court.

3. The learned Advocate-General, on the other hand, submits that an examination of the case-law would establish the following proposition, viz., that before an accused could plead Autrefois Acquit, an appellate Court must call on him to Show cause why his acquittal should not be set aside and unless this is done the mere remand by the High Court does not preclude the accused from pleading Autrefois Acquit under Section 403, Cr. P. C and secondly the right of the accused to plead under Section 403, Cr. P. C., arises only after the accused is called upon to enter his plea to the charge and hence he is entitled to raise and invite an adjudication thereon. If he is so entitled and no adjudication is made on his plea, he has every right to come in revision and if so this Court can entertain it.

4. In our view, the contention of the learned Public Prosecutor appears to show either a confusion of thought as to the provisions of the Code or is based on a misapprehension of the powers and functions of this Court. The accused js aggrieved by an order of the Additional Sessions judge. Visa-khapatnarn, negativing her plea of Autrefois Acquit under Section 403, Cr. P. C. In these circumstances, under Sections 435 and 439, Cri. P. C. she has a right of revision to the High Court to agitate the validity of that order and if in determining the correctness, legality and propriety of that order under revision, other matters have to be considered, which are germane to them, it cannot on any reasonable view be said that the High Court is nat competent to hear the revision itself, or that the High Court is reviewing its own order.

5. It is well to, remember that the plea of autrefois acquit under Section 403 has as its basis the general principle of common law expressed in the maxim nemo debet bis vexari - a man must not be put twice in peril for the same offence. The accused, therefore, cannot be retried for the same offence as long as the conviction or acquittal is in force. If this is bis right, then the proper time for him to take that plea would be after he has been asked to plead to a charge which is when the trial begins. Then only can the matter be determined and the question whether the conviction or acquittal is in force would have to be decided.

A similar objection was taken before the Full Bench of the Madras High Court in Emperor v. John Mclvcr 43 Mad LW 548: (AIR 1936 Mad 353). The Crown Prosecutor contended that the question whether the plea of autrcfois acquit was available to the accused could not be referred by the trial Judge, because the point had already been decided by the High Court against the accused in the proceedings previous to the trial. This question was answered by all the three Judges, Cornish, Mockelt and Lakshmant Rao. IT, in the affirmative, namnly, that this plea cnuld be referred by the trial Judge and that the effect of the judgment of the Bench of the High Court could be considered in relation to the question whether the conviction or acquittal of the accused was in force.

In that case the accused was alleged to have commuted the offences of cheating and criminal treach of trust. Summonses were issued by the Chief Presidency Magistrate in respect of both offences; but when the parties appeared it was stilted that the complainant wished to compound the offence as the only offence was one of cheating under Section 420, Indian Penal Code. This was sanctioned by the Magistrate, and an order acquitting the accused was made. Cheating being a com-poundable offence, the effect of the Magistrate's order sanctioning the composition was the acquittal of the accused of that offence under Section 345(4), Criminal Procedure Code.

The Crown appealed against the acquittal alleging in the first place that the acquittal of cheat-ting was bad as the Magistrate was not shown to have exercised his discretion in allowing the composition; and, secondly, that as the complaint disclosed the offence of criminal breach of trust and a summons had been issued in respect of that offence, which was a non-compoundable offence, She Magistrate must be deemed to have sanctioned the composition of this offence likewise in acquitting the accused,

The appellate Court (Madhavan Nair and Burn, JJ.) upheld the acquittal of cheating but directed the Magistrate to restore the summons in respect of the alleged breach of trust to his file and to dispose of it according to law. No question of the acquittal of cheating being a bar to a trial for eriminal breach of trust appears to have been raised in the arguments of the counsel, and no opinion, or decision upon that question was given in the judgment. However, when the matter went back and the plea of autrefois acquit was raised in due course before him, the learned Magistrate, as in this case, regarded the High Court's order as leaving him no option, but to go on with the case.

His order also was in somewhat similar terms to the order under revision. Against the order of the Magistrate in that case dismissing the petition and declining to discuss the question of autrefois acquit raised by the accused, because be considered that he was precluded by the order of the High Court, the accused came up in revision, but that revision was disposed of summarily by King. J., who said that he saw no ground for revision. The question that was argued before the Full Bench, therefore, was that when the point of autrefois acquit was raised and argued before a Judge, he must be taken to have decided that question in dismissing the petition. The Full Bench had no difficulty in repelling rthat contention and in the words of Moc-Sett, J., at page 562 (of Mad LW): fat p. 364 of AIR).

'How a plea of autrefois acquit could be decided on an appeal against an acquittal has not been pointed out. My view is, that until the learned Chief Justice decided it, the plea of autrefois acquit had never been decided on the merits. The appellate Court did not decide if, the Magistrate refused to decide it, and King J. 's order amounts to nothing more than this, namely, that the case should proceed. It was an order passed in revision, a discretionary order, indicating that he saw no reason to exercise his discretionary powers of interference I find if impossible to suppose that the learned Judge intended to decide summarily so important it plea as is raised under Section 403, Cr. P. C. Nor do I accept the learned Crown Prosecutor's suggestion that a plea of autrefois acquit can be conslructi-vely decided'.

The learned Public Prosecutor contends that this case is distinguishable on the ground that in the appeal against acquittal, the High Court had confirmed the acquittal; but that is begging tne question, because it is only after the Full Bench decided that they had jurisdiction to consider the effect of the previous order of the High Court that they determined the question whether the accused hud a right to raise the plea of autrefois acquit.

6. The principle on which the plea of autrefois acquit or convict is based is not merely that a person acquitted or convicted should not be tried again for the same offence, but also that [he verdict of acquittal is binding conclusively in all subsequent proceedings between the parties to the adjudication. The principle of res judicata applicable to civil cases is equally applicable to criminal cases. The plea which the accused is entitled to raise is under the provisions of Section 403, Criminal Procedure Code, Sub-section (1) whereof is as follows:

'403. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which different charge from the one made against him might have been made under Section 236, or for which the might have been convicted under Section 237.'

Once this plea is raised, it has to be determined whether the trial of the accused is for the same offence for which he was convicted or acquitted and whether the previous conviction or acquittal is or is not in force. The principle underlying Section 403 has been staled by the Privy Council in a case from Malaya, Sambasivam v. Public Prosecutor, 63 MLW 597 which was approved by their Lordships of the Supreme Court in Pritam Singh v. State of Punjab (S) : 1956CriLJ805 . In the former case, one Sambasivam was travelling on foot in the State of Johore in the company of two Chinese. They met a party of throe Malays and a fight ensued in the course of which one of the Chinese was killed, and the appellant was seriously wounded, The other Chinese escaped and was not apprehended. The Malays, who were armed with knive s, alleged that they had been fired upon by the Chinese and that Sambasivam had drawn and pointed a revolver at one of them before he had been wounded and disarmed.

The appellant was subsequently tried on two charges : (1) for being in possession of an unlicensed fire-arm, an offence punishable under Regulation 4 (1) (a) of the Emergency Regulations of 1948, and (2) that he was in possession of ten rounds of ammunition without lawful authority, thereby committing an offence under Regulation. 4(l)(b) of the Emergency Regulations, 1948. The assessors acquitted the accused of the offence under Regulation 4 (1) (b) for being in possession of the ammunition with which verdict tne Judge agreed.

On the first charge also, the assessors returned a verdict of not guilty, but the Judge disagreed and ordered a retrial. At the retrial, Sambasivam was found guilty and was sentenced to death. His appeal was also dismissed. Their Lordships while considering the weight to be attached to the confessional statement due to its belated production, examined the effect of the verdict of acquittal on the weight to be accorded to the statement. Lord Mac Dermott, giving the opinion of the Board, observed at page 604:

'...... But there is one feature of the present case which must now be mentioned and which, though it bears directly on the weight to be accorded to the statement under discussion, in volves an important principle of the criminal law to such an extent that, in the opinion of the Board the conviction appealed from ought not to be allowed to stand.

The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence- To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is no less applicable to criminal than to civil proceedings.

Here, the appellant having been acquitted at the first trial on the charge of having ammunition, in his possession,, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arms charge is plain, but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.'

In Pritam Singh's Case, : 1956CriLJ805 , both the accused, Pritam Singh and Pritam Singh Lahora along with one absconding accused were tried for the murder of two persons by shooting them with firearms, Pritam Singh, after his arrest made a statement and led the police party to a field in the village from where two revolvers were recovered. He was charged and convicted under Section 19(f) of the Arms Act by the Magistrate, but that conviction was set aside by the Additional Sessions Judge and he was acquitted of the charge levelled against him. With respect to this allegation, the Additional Sessions Judge, who convicted the accused, had not placed any reliance on the acquittal of Pritam Singh Lahora previously for the offence under the Arms Act observing that any expression of opinion contained in the judgment was not only not binding on him but was irrelevant under the Indian Evidence Act.

He, therefore, held the recovery as proved against the accused and considered that as connecting Pritam Singh Lahora with the incident. The High Court, on the other hand, rejected the evidence having regard to the observations of the Privy Council in Sambasivam's Case LR (1950) AC 458: 54 Cal WN 695 cited above. Their Lordships of the Supreme Court agreed with the High Court observing at page 422 :

'The acquittal of Pritam Singh Lahora of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Exhibit P-56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord Mac Dermolt quoted above, could not be proved against Pritam Singh Lahora in any further proceedings between the Crown and him. We are of the opinion that the High Court was right in rejecting the evidence regarding the re-covery of Exhibit P-56 against Pritam Singh Lahora and the evidence against him would have to be considered regardless of the alleged recovery of Exhibit P-56 at his instance.'

it is unnecessary to refer to further cases for theproposition that the acquittal of the accused isfinal and conclusive and is binding in all subsequent proceedings and that while the acquittal orconviction is in force, the accused cannot be triedfor that offence nor on the same facts for any otheroffence as specified in Section 430(1), Criminal proce-dure Code. The only question in this case is whother the acquittal of the accused is in force, indetermining this question, 'the effect of the judgmentsetting aside the acquittal can and must begone into. In our view, therefore, the preliminaryobjection has no merit, and deserves to be rejected.This Court has certainly jurisdiction to entertainthe revision and determine the question referredto it.

7. In the instant case, the State had nflfi filed an appeal against the acquittal of the accused under Sections 302 and 392, Indian Penal Code, nor was there a revision against thai- acquittal under Section 439, CE. P. C. nor does if appear that the High Court exercised these powers suo motu, nor was the accused given an opportunity to show cause why the judgmemt of acquittal should not be set aside. As such, it would be a matter far consideration whether the High COURTS in ordering retrial exercised its revisional or appellate jurisdiction If the revisional jurisdiction has been exercised, has it been exercised in conformity with Section 439 which is as under .:

'439. (1) In the case of any proceeding the record of which has been called for by itself which has been reported for orders or which otherwise comes to its knowledge, the High Coat may in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426. 427 and 428 or on a Court by Section 338, an'd mar enhance the sentence; and, when the Judges cant-posing the Court of Revision are equally divided an opinion, the case shall be disposed of in manner provided by Section 429,

(2) No order under this Section shall be madeto the prejudice of the accused unless he has hadan opportunity of being heard either personally orby pleader in his own defence.

(3) Where the sentence dealt with under the Section has been passed by a Magistrate acting Otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence winch, in the opinion of such Court, the accused has committed, than might have been inflicted for suck offence by a Presidency Magistrate or a Magistrate of the First Class.

(4) Nothing in this Section applies, to entry made under Section 273, or shall be deemed to autho-rize a High Court to convert a finding of acquired into one of conviction.

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section any convicted person to whom an opportunity has been given under Sub-section (2), of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.'

It may be noticed that Section 439(1) empower the High Court, in its revisional jurisdiction, to exercise any of the powers conferred on a Court of Appeal by Section 423 and other Section s specified therein and to enhance the sentence. The High Court can therefore, in exercise of its revisions powers, either suo motu or on application by the complainant, exercise the powers of an appellate Court both with respect to acquittal and convication This revisional power is subject to three limitations firstly, no order can be made to the prejudice of the accused, unless he had an opportunity of being heard personally or by a pleader in his own defence, and secondly, it cannot convert a finding of acquittal into one of conviction, or af-fect an entry made by the Judge in trial before the High Court, and thirdly, no revision can be entertained at the instance of a party who could have appealed under the Code and has not appealed.

H is thus seen that the High Court alone possesses the power of setting aside an order of acquittal either under Section 423(1)(a) read with Sections 417 or 439, Cr. P. G. In other words. Courts subordinate to the High Court have not been vested with powers to entertain appeals against acquittal or to set aside in revision an order of acquittal, This position admits of no doubt and we were surprised at the argument of the learned Public Pro-secutor that Courts subordinate to the High Court can also exercise the power to set aside acquittals.

8. It may now be mentioned that the accused was not represented by an advocate as she had filed a jail appeal. In the circumstances, until the order directing re-trial is served on her in jail, she could have had no intimation that her acquittal trader Sections 302 and 392, Indian Penal Code, was likely to be set aside. The docketsheet shows that the case was partly heard on 18th and 19th when the Public Prosecutor was heard. The order of the 19th appointing Mr. Gangadhar Rao is as follows :

'Heard the learned Public Prosecutor at some length and I feel that justice has not been done in this case by the learned Sessions Judge. There is no proper appreciation of evidence and understanding of facts. At this stage, I consider that before 1 come to any definite conclusion in the case I should give an opportunity to the accused to be beard. As the accused is undefended, Mr. A. Ganga-dhara Rao, Advocate of this Court is appointed amicus curiae to argue the appeal on behalf of the accused. The appeal is posted to next week.'

If the order is deemed to have been made suo motu by the High Court exercising jurisdiction under Section 439, Cr. P. C. no order could be made to the prejudice of the accused unless she had an opportunity of being heard either personally or by pleader in her defence. If. therefore, in exercise of the powers under Sub-Section (I) of Section 439, Cr. P. C. the powers of setting aside an acquittal and ordering a re-trial is proposed to be exercised, the accused should have an opportunity of being heard.

There is nothing on record from which it would appear that the accused or her pleader was called upon to show cause against the Order proposed to be made. The appointment of an amicus curiae to argue the appeal on hehalf of the accused' dees not, in our view, satisfy the requirements of Section 439(2), Cr. P. C. because had the accused been called upon to defend herself against the proposed order of re-trial, she might have engaged a lawyer herself or given instructions when one is appointed by the High Court

In Jangal Prasad v. The State : AIR1953SC467 , where the sentence of whipping was set aside en revision as illegal and instead, imprisonment for nine months was imposed by the High Court, the Supreme Court, in spite of the fact that the parties had requested for time for arguments on the question of sentence and an adjournment was given, held that it was not a valid order. Fazl Alt, J, observed at page 468 :

'There is a note, dated 21-8-1951, in the order sheet of the High Court, to the following effect:

'Parties request for time to argue on the point of punishment. Granted. Put up tomorrow'. It appears that before the High Court, two main questions arose for consideration. There were:

(1) Whether on the merits, the conviction of tha appellant could be sustained; and

(2) Whether the sentence of whipping imposed by the Magistrate was legal in the circumstances of the case.

Presumably, the adjournment was asked for to argue the second question. There is nothing on record to show that the High Court either appreciated the necessity of issuing or did issue a notice to the accused to show cause why his sentence should not be enhanced or altered in the manner in which it has been done. If such a notice was intended to be issued, there would have been an express order to that effect in the order sheet. There is nothing to show that the accused personally had any notice, that the sentence of whipping was to be substituted by a sentence of imprisonment.

9. No doubt, in Jayaram v. State of Bombay : 1956CriLJ318 , Venkatarama Ayyar, J., said that (he law does not require any particular formalities should be complied with before action is taken under Section 439(2) but that does not mean that the accused need not be informed of that proposed action and given an opportunity to show cause against it. In that case, the question of exercising revisional powers did not directly arise and even if it did so, their Lordships held that In the circumstances the accused had an opportunity of showing cause againsit conviction and enhancement of sentence. The Privy Council also in Emperor v. Dahu. AIR 1935 PC 89 observed

'Where the appeal is before a High Court and it is theught to be desirable, that Is no reason, why the accused should not be warned, that at the hearing on the petition, he may be called on to show cause why his sentence should not be enhanced under Section 439, Cr. P. C.'

10. In the absence of any such proceedings in revision giving the accused an opportunity of being heard on the order of retrial proposed to be criminal court.' The right of appeal against accused against her conviction and sentence under Section 423(1)(b), Cr. P. C, sat aside the order of acquittal and remand the case to be retried on the same charges on which the accused had been acquitted? It may be stated that Section 407, Cr. P. C. of 1861 embodied the old established principle or English Law that a man once tried for an offence cannot ipso facto be proceeded against In any subsequent proceedings for that offence.

The Section enjoined that 'there shall be no appeal from a judgment of acquittal passed in any criminal court.' The right or appeal against ac-quittal was for the first time recognised, subject to certain limitations, by the Cr. P. C. of 1872 and that is embodied in Section 417 Cr. P. C. now in force which gives a right to the State to file an appeal against an order of acquittal to the High Court within the period prescribed by Article 157. of the Indian Limitation Act, that is, within three months from the order appealed from.

Section 417 Cr. P. C. has been amended by Act XXVI of 1955 which now by virtue of Sub-section (3) and Sub-section (4) confers a right on complainant to appeal to the High Court, in any case instituted upon a complaint which has ended in an order of acquittal, provided the complainant applies for special leave to appeal within sixty days from the date of the order of acquittal and obtains leave of the High Court. The intention of the Code as expressed in Section 417 Cr P. C. is that an acquittal should stand until appealed against by the State or by the complainant as the case may be.

A mere reading of these Section s - Section 417 read with Section 423(1)(a) and Section 439 Cr. P. C. would show that the acquittal of an accused would be in force unless it is set aside by the High Court in an appeal against acquittal under Section 417, Cr. P. C. or in a revision under Section 439, Cr. P. C. The question, as we have already stated, is apart from these powers, where there is no appeal against acquittal or a revision for setting it aside, can the appellate Court in exercise of its powers under Section 423(1)(b), Cr. P. C. set aside an acquittal and direct a remand in an appeal by the accused against his conviction. To determine this question, it is necessary to examine the powers of the appellate Court to dispose of appeals under Section 423. This Section is as under :

'423. (1) The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under (Section 411A, Sub-section (2) or Section 417), the accused, if he appears, the Court, may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law :

(d) in an appeal from a conviction, (I.) reverse the finding and sentence, and acquie or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(2) alter the finding, maintaining the sentence, or with or witheut altering the findings, reduce the sentence, or, (3) with or witheut such reduction and with or witheut altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-section (3), not so as to enhance the same.

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequen-tial or incidental order that may be just or proper.

(l-A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in Clause (b) of Sub-section (1);

Provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement.

(2) Nothing herein contained shall autherise the Court to alter or reverse the verdict of a jury, unless it is of opinion than such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.'

The Section as it will be seen envisages three types of appeals. The first type is under Section 423(1)(a) read with Section 417 Cr. P. C. which confers powers only on the High Court in an appeal against acquittal. In such an appeal, the High Court can reverse the order of acquittal and direct a further enquiry or direct the accused to be retried or committed for trial, as the case may be, or find him guilty and pass a sentence on him according to law. The second type of appeal is that agaiast a conviction under Section 423(1)(b) which empowers the appellate Courts, to revise the finding and sentence and acquit or discharge the accused and order him to be retried or to alter the finding maintaining the sentence or reduce the sentence or with or witheut altering the finding to alter the nature of the sentence subject to the provisions of Section 106, Sub-section (3) not so as to enhance the same.

The third type of appeal is under Section 423(1)(c) against any other order where the appellate Court can alter or reverse such an order. The powers under the second and third type of appeals, it may be noticed, when read with Section 408 are not unlike the first confined to the High Court. It can be exercised by other appellate Courts subordinate to the High Court. We are here particularly concerned with the second type which deals with appeals against convictions. The words 'reverse the finding and sentence', and 'alter the finding', appearing in Section 423(1)(b) have given rise to conflict of views in the High Courts.

The broader view is in favour of interpreting that provision as vesting powers on the appellate Court to reverse a finding of acquittal in cases where the accused was convicted of another offence and has appealed againsf it. The reasons for this interpretation are that an appeal from a conviction is not a second trial, but a mere continuation of the same and that the Legislature has not fettered the terms of this Section with any limitations; that no injustice is done when the appellate Court alters a finding of acquittal by the trial Court and that if the Legislature had intended to impose a restriction, as it has done by the provisions of Section 439 Cr. P. C. on the power of an appellate Court while dealing with an appeal from a conviction, nothing would have been easier than to enaat a similar provision in Sub-clause (2) of Clause (b) of Section 423 Cr. P. C.

11. The restricted view is for interpreting Section 423(1)(b) as empowering the appellate Court in an appeal from a conviction to reopen only the case as regards the charge on which the accused has been convicted and that there was no justification in considering that an appeal from i conviction reopens for consideration of the Court of appeal even the case as regards which the accused has been acquitted and against which no party has moved the Court.

12. The first view was propounded in Krishna Dhan Mondul v. Queen-Empress ILR 22 Cal 377, which was followed in the case of Queen-Empress v. Jabanulla ILR 23 Cal 975. In the first of these cases, it was observed ;

'Where an accused person is charged with and tried for various offences arising out of a single act or series of acts, it being doubtful which of these offences the act or acts constitute, and where the accused has been acquitted by the verdict of jury of some such offences and convicted of others and appeals against such conviction, and where the Appellate Court reverses the verdict of the jury, and orders a retrial witheut any express limitation as to the charges upon which such retrial is to be held, such retrial must be taken to be upon all the charges as originally framed, and the acquittal bv the jury om the previous trial upon some of such charges is no bar to the accused being tried on them again, as, having regard to the provisions of Section 423 Cr. P. C. the provisions of Section 403 Cr. P. C. in that respect cannot apply to such cases.'

In Jabanulla's Case ILR 23 Cal 975, the appellants had been charged with offences punishable under Sections 148 and 302 read with Sections 149 and 329 I.P.C. The Sessions Judge convicted the appel-lants of an offence under Section 326 I.P.C. and acquitted them of the offence under Section 148 I.P.C. On appeal to the High Court, it was contended that under Section 423 Cr. P. C., (there was no power to deprive the appellants of the benefit conferred upon them by an acquittal. Following the decision in ILR 22 Cal 377, it was held that the appellate Court can, in an appeal from conviction, alter the finding of the lower Court and find the appellants guilty of an offence of which he might have been acquitted by that Court, except where such conviction would have the necessary result of enhancing the sentence.

The reason given for so holding was that when the accused appeals from his conviction he brings the whole case before the Court of Appeal and hence there is no reason why when the law permits an alteration of the finding in express terms, the appellate Court, should not have the power to find the appellant guilty of an offence which it considers established merely because the Court below has acquitted him of that; offence and found him guilty of some other offence. The Court seems to have been influenced in its reasoning and conclu-sion hy the fact that since the alteration does not permit the enhancement of the sentence, the deceased (accused?) cannot naturally be prejudiced.

The High Court of Madras following the case of Jabanulla ILR 23 Cal 975, and the case of Satish Chandra Das Bose v. Queen-Empress ILR 27 Cal 172 in Golla Hanumappa v. Emperor ILR 35 Mad 243, also observed that no injustice is done when the appellate Court, alters a finding of acquittal by the trial Court as the sentence is maintained. The view taken in this case is that the power is not confined to cases falling under Sections 237 and 238.

The finding which an appellate Court may alter under Section 423(1), (h) may relate either to an offence with which the accused was apparently, charged in the lower Court or to one of which he might be convicted witheut a distinct charge. In cases not falling under Sections 237 and 238 Cr. P. C. no doubt the appellate Court cannot convict a person of an offence with which he was not charged in the first court but where he has been charged and the first court has recorded a finding on the charge then there is no reason for holding that the appellate Court cannot alter the finding.

In that case, theugh the acciuittals were set aside and the accused convicted of the charge, the sentence awarded by the lower Court was maintained. The Patna High Court in Dhan Pat Singh v. Emperor AIR 917 Pat 625 followed the decision in ILR 35 Mad 24.3 while in Mahangu Singhi v. Emperor AIR 1918 Pat 257 it was held that the limitation placed by Chapman, J., in Dhanpat Singh's case AIR 1917 Pat 625 was not justified. It was observed :

'The Section as it stands empowers the Court to alter the finding, maintaining the sentences, and if it be conceded that a finding of acquittal may be altered to a conviction on a point of law, wo can conceive no valid reason for limiting the word 'finding' upon a point of law as distinct from a finding upon a point of fact.'

In Re Bali Reddy, ILR 37 Mad 119: (AIR 1914, Mad 258) the High Court pressed into1 service sec-lion 423(1) Clause. (b) and Section 439 and set aside an acquittal under Section 302 by awarding a sentence of transportation for life to each of the accused: It was held that Section 423(1) Clause (b) Rave power to the High Court when hearing an appeal against a conviction and Section 439 gave power to enhance the sentence so as to make if appropriate to the filtered finding.

They observed with respect to the limitation imposed by Section 439(4) which enacted that nothing in that Section shall be deemed to autherise a High Court to convert a finding of acquittal into me of conviction must be construed as referring o cases where the trial has ended in a complete .cquittal; any other construction would be inconsistent with the power to alter a finding given to the Court as a Court of revision to exercise the power conferred on a Court of Appeal by Section 423 Clause (b).

This case came up for consideration before their Lordships of the Privy Council in Kishan Singh v. Emperor ILR 50 All. 722 : (AIR 1928 F.C. 254). In that case the accused was tried on a. charge of murder under Section 302 I.P.C. but was convicted under Section 304 I.P.C. of culpable homi-cide not amounting to murder, and sentenced to 5 years R.I. The local Government did not appeal but applied for revision on the grounds that the appellant should have been convicted of murder, and that the sentence was inadequate. The High Court thereupon convicted the appellant under Section 302 I.P.C. The Privy Council held that the High Court had no jurisdiction to convert an acquittal into one of conviction, because of the spe-cific prohibition in Sub-section (4) of Section 439 Cr. P. C. '

Their Lordships approved the passage in the judgment of the Allahabad High Court in the case of Emperor v. Sheo Darshan Singh 44 All 332 : (AIR 1922 All 487) than 'the only methed by which it would be possible to obtain a conviction of murder would be by an appeal against the judgment of acquittal'. In so far as the case ILR 37 Mad 119 (AIR 1914 Mad 258) was concerned, they sought to distinguish it on the ground that- in that case the accused had appealed to the High Court against his conviction and the High Court as a Court of revision had given a notice to show cause why they should not sentence him for that offence. In dealing with that case, it was observed at page 730 (of ILR All): (at p. 257 of AIR) as follows ;

'It is not necessary on the present occasion for their Lordships to express any opinion whether the facts of the cited case would justify the decision at which the learned Judges arrived. Their Lordships, however, do think it necessary to say that if the learned Judges of the High Court of Madras intended to hold that the prohibition in Section 439, Sub-section (4), refers only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges or offences, and not to case such as the present, where the accused -, has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, their Lordships arei unable to agree with that part of their decision. The words of the Sub-section are clear and there can be no doubt as to their meaning. There is no justification for the qualification which the learned Judges in the cited case attached to the sub-section .'

This case has been interpreted by several_ High Courts which have adopted the restricted view as! supporting the proposition that an appeal against acquittal cannot be set aside under Section 423(1)(b) while those that hold the opposite view assert that the Privy Council has not at all considered the %i provisions of Section 423(1)(b) Cr. P. C. The Lahore High Court in the case of Bawa Singh v. The Crown ILR 23 Lali 129 : (AIR 1941 Lah 465) exercised the cumulative powers of appeal and revision under Sections 423(1)(b) and Section 439 as in ILR 37 Mad 119; (AIR 1914 Mad 258) and held that the High Court is competent in its appellate juris-diction to alter the finding from Section 304, Part I, to a finding that the conviction should be under Section 302 I.P.C.. and in the exercise of its revisional jurisdiction under Section 439 Cr. P. C. it can then pass a sentence of death or transportation for life as the merits of the case may require.

The difficulty caused by the decision in Kishan Singh's Case ILR 50 All 722 ; (AIR 1928 PC 254) was got over by interpreting Section 423(1)(b) Cr. P. C. as empowering the High Court to alter the finding from one under Section 304 I.P.O. to one under Section 302 I.P.C., theugh it was recognised that at first sight: 1 there appears to be some force in the reasoning that a conviction under Section 302 I.P.C., in the circumstances pointed out above, would amount to a reversal of an acquittal and not an alteration; but the Full Bench said that on a deeper consideration, this cannot be the correct interpietation of the word 'alter in Section 423(1)(b)(2), Cr. P. C.

The reasons given were, that in the first place there was no such limitation in the Section itself on the meaning of word 'alter'. If it were intended to impose such a limitation, the Legislature would have inserted a clause similar to sub-Section (4) of Section 439 Cr. P. C. In the second place, the result of any such reading would lead to remarkable results which could have been hardly contemplated by the Legislature.

IB appears that the results which would follow by giving a natural meaning to the word 'alter' seems to have influenced the decision tWO illustrations were given to show that the Legislature could not have seriously contemplated a contingency where the accused will have to be acquitted if no appeals against acquittals were filed. These were:

(a) A person is charged alternatively wi[h theft & criminal misappropriation. If the trial court finds that the man was in possession, it would acquit him of theft & find him guilty for criminal misappropriation, only. On appeal from conviction, if the appellate Court comes to' the conclusion that the convict was not in possession, it cannot convict him of criminal misappropriation on its finding that he was not in possession of the property misappropriated, but it could not convict of theft, because such an alteration would involve a reversal of the acquittal..

(b) A man is charged under Section 325 I.P.C. & the trial Court held that he was guilty under Section 335 I.P.C because of grave and sudden provocation, and there would be an acquittal under Section 325 I.P.C. On appeal, if the anpellate Court came to the conclusion that in law the facts found did not . amount to grave and sudden provocation, it cannot convict the accused under Section 335 I. P. C.. because this would involve a reversal of the verdict of acquittal of the charge under Section 325 I. P. C. The reason why the word 'reverse' was not used in Section 423(1)(b)(1) Cr. P. C. while it found a place in (b) and (c) of Sub-section (1) and in Sub-section (2) of the said Section , was given as being due to the fact that there could he a complete acquittal and a partial acquittal and in the former case it would be necessary to give the appellate Court a power to reverse an acquittal while in the latter, it would not hp necessary to set aside any finding that the man is innocent, for ex hypo-thesi the man has been found guilty of an offence. With great respect, this reasoning ignores the decision of the Privy Council in Kishan Singh's rasp ILR 50 All 722: (AIR 1928 P. C. 254), where their Lordships categorically disapproved the meaning given to the word 'acquittal' in Sub-section (4) of Section 439 Cr, P. C. bv the Madras High Court in I.L.R. 37 Mad 119: (AIR 1914 Mad 258), as implying a complete acquittal, similar to that being envisaged by Dalio Svngh, J., in the above judgment. The word 'acquittal' occurs both in Sections 417 and 423(1)(a) Cr. P. C. and cannot be given a different meaning to that in Section 439(4) Cr P. C. If so, the interpretation and the expression of oninion, in respect of Section 439(4) would equally apply.

Secondly, it appears that the Full Bench of the Lahore High Court did not fully consider the incongruous results which would follow if this proposition is taken to its logical conclusion. Taking the illustration which was given in that case itself, suppose the accused was charged under Section. 302' I.P.C, but convicted under Section 304 I. P. C., and he appealed against his conviction and there being no appeal by the State, can the appellate Court after the conviction under Section 304 to one under Section 302, because on the facts it holds that it is the oniy proper conviction that could have been made.

According to the above decision, it could do so, theugh the appellate Court could not maintain the sentence under Section 304 I.P.C., on an alteration, of conviction to one under Section 302 I.P.C., as the only legal sentence for murder under that Section is death or life imprisonment. As this would involve the power of enhancing the sentence which Section 423 Cr. P. C. did not possess, until the amendment in 1955, the provisions of Section 439(6) Cr. P. C. had to be brought in to meet this difficulty. With respect, we are unable to subscribe to this reasoning as it is not only influenced by the results irrespective of the difficulties in the particular interpretation to bo given to the word alter' but also in certain contingencies, while the appellate Courts other than the High Court are unable to alter a finding to one where the sentence itself would exceed that awarded, the High Court could do so with the aid of Section 439.

This according to the Full Bench is permissible on the autherity of the Privy Council in Chunbidya v. Emperor. ILR 57 All 150: (AIR 1935 PC 35) overlooking however the facts and particular circumstances of that case. There it was not a case of converting an acquittal into a conviction, but only enhancing the sentence maintaining the conviction. Some of the anomalies resulting from putting a wider interpretation on Section 423(1)(b) Cr. P. C. were indeed recognised by Bannerii J.. in Jabanulla's case, ILR 23 Cal 975 and Ismail, )' in Zamir Qasim v. Emperor, AIR 1944 All 137 (FB) as arising in cases where accused is acquitted of a charge of murder under Section 302 I.P.C. and convicted of a lesser offence of grievous hurt or an offence under Section 304 I.P.C. Bannerji J., while thus recognizing the difficulty said that this contingency does not fall for consideration in that case.

Take for instance the case of an accused who is charged with an offence under Section 397 I.P.C. before a Magistrate, empowered under Section 30 (prior to the amendment in 1956), of robbery or dacoity with attempt to cause death or grievous hurt and the Magistrate finds him guilty under Section 395 and sentences him to 5 years R. I. On appeal to the Sessions Court, it finds on the facts proved that the accused ought to have been convicted under Section 397 I.P.C., for which the punishment of not less than 7 years will have to be awarded. The Sessions Court certainly cannot alter the finding from the one under Section 395, I.P.C., to-one under Section 397 I. P. C., because it cannot maintain the sentence.

If this is not possible in the case of appellate Courts subordinate to the High Court, how can it be said that the Legislature intended to use the word 'alter' in the sense in which it is sought to he used merely because it would facilitate the High Count under. Section 439(6) Cr. P. C. to combine that power with this and to facilitate the alteration of one finding to another witheut being fettered by the limitations imposed on Clause (b) of Sub-section (l) of Section 423. The Lahore High Court with great respect apparently lost sight of the tact that the power of enhancement of sentence is limited by the provisions of Sub-section (4) of Section 439, Cr. P. C. which does not empower the alteration of a finding of acquittal into one of conviction. How then, can the powers of enhancement of sentence under Section 439(6) be used for the purposes of reversal of an acquittal under Section 423(1)(b), when the Legislature clearly limited the power to a revision.

The very question whether the revisional powers can be exercised for enhancement of a sentence in an appeal from conviction under Section 323 I.P.C. by altering it to one under Section 302 I.P.C, came up for consideration before a Full Bench of the Allahabad High Court in Taj Khan v. Rex, AIR 1952 All 369. The answer was in the nega live. Dealing with the Full Bench of the Lahore 'High Court, Agarwala, J., after citing the observations of Dalip Singh, J., that all that is taken away from sec, 423 (1) (b) is the power to enhance the sentence, and that no restriction was placed on the power of the appellate Court to alter the finding, observed at page 382 ;

'With She great respect to the learned Judge, it may be pointed out that the power to alter the finding is not divorced from the duty to maintain the sentence. The words in Section 423 Cr. P, C. 'alter the finding maintaining the sentence' have to be read together and not divorced from each other and so read the maintenance of the sentence is a condition precedent to the alteration of the finding.

Further, the learned Judge did not consider that the power of enhancing the sentence under Section 439 Cr. P. C. was also subject to the condition that it could not be exercised along with the alteration of the finding. The Privy Council case referred to by the learned Judge was a case in which the finding had not been altered because the appeal had been dismissed and so it gave no support to this conclusion arrived at by the learned Judge.'

We have also given our own reasons for dissenting with the view that powers of revision and appeal can be so combined as to alter an acquittal into a conviction, which has the effect of nullifying the limitation imposed by Section 423(1)(b)(2). Even, assuming for a moment that the words 'alter the finding' have the meaning suggested in the several judgments which took the broader view, a view which we shall deal presently, it is not permissible, for the reasons already stated, to combine appellate and revisional powers for the purpose of achieving that which is prohibited by the provisions individually.

The Full Bench of the Allahabad High Court, in AIR 1944 All 137 which overruled the case Sarda Prasad v. Emperor, AIR 1937 All 240 by a majority following the reasoning of the Calcutta and Madras cases held that even where there is no appeal against acquittal, so long as the sentience is not changed, there is no change in the form altheugh an order of acquittal has been substituted by an order of conviction.

There again the powers of the appellate Court under Section 423(1)(b) (2) was declared to be subject to the condition that if cannot enhance the sentence imposed by the trial Court. The minority view of Hamilton and Mulla JJ.. was that an order of acquittal can only he converted if there was an appeal under Section 417 Cr. P. C. The majority were of the opinion that Kishen Singh's case, ILR 50 All 722 : (AIR 1928 PC 2541 had no application as it did not deal with the principle under Section 423(1X4).

This was the view adopted by some other Courts in dealing with the aforesaid Privy Council case. There is no doubt that that case dealt with Section 439 Cr. P. C. but it cannot be that their Lordships of the Privy Council were unaware of the fact that the powers under Section 439 Cr. P. C. included the powers under Section 423 Cr. P. C. and in the circumstances when they approved the decision of the Allahabad High Court in ILR 44 All 332 : (AIR 1922 All 487) that the only methed known tto law to set aside an order of acquittal was by way of an appeal against acquittal, it must be taken as meaning that the High Court had no jurisdiction to alter a finding of acquittal into one of conviction under Section 423(1)(b).

This was also the view of Daa Gupta, J., in Indra Kumar Nath v. The State, : AIR1954Cal375 . In 'Re Illuru Lakshmiah', : AIR1952Mad101 , it was held that the appellate Court can alter the finding maintaining the sentence. So long as the sentence is maintained, it is of little importance and it causes no prejudice whatever to the accused if the appellate Court alters the finding. It may he stated that while indicating his views, Somasundaram J., said that he was bound by the decisions in Appanna v. Mahalkshmi, ILR 34 Mad 545, ILR 35 Mad 243 and : AIR1954Cal375 '.

It is true that there is no specific reference to Section 236 or 238 Cr. P. C. in Section 423(1)(b) Cr. P.C. and because of this some of the Courts have taken the view that the finding which an appellate Court may alter under Section 423(1)(b) may relate either to an offence with which the accused was apparently charged in the lower Court or to one of which ho might be convicted witheut a distinct charge. But here again, in cases not falling under Sections 236 and 237 Cr. P. C, the appellate Court cannot convict a person of an offence with which he was not charged in the first court.

Though this limitation was recognised, it was held that where he has been charged and the trial Court has recorded a finding on the charge, there is no reason for holding that the appellate Court cannot alter the finding. Somasundaram J. thought that the limitation of altering the finding with that permitted under Sections 236 and 237 of offences of which he could be tried or convicted under the provisions of these sections, would also imply in every such case a reversal of an acquittal and on that assumption he says : 'Once it is an acquittal either express or implied by the trial Court, if it is said that it cannot alter except by an appeal against acquittal, there is no case or class of cases to which the phrase can apply. The phrase will be merely a dead letter in the Section .'

13. With great respect, we are unable to accept the reasoning given by the learned Judge or accept the assumption upon which it is based. Even in these cases which adopted the broader view, except for the cases of ILR 37 Mad 119: (AIR 1914 Mad 258) and ILR 23 Lah 129: (AIR 1941 Lah 465), the principle adopted was that the power of the appellate Court was subject to the condition that it cannot enhance the sentence. In our view, the provisions of Section 423 Cr. P. C. must be read along with the other provisions of the Code which govern if.

That Section confers powers on the appellate Court both in appeals against acquittals and against convictions. In acquittals, it is governed by Section 417 and Article 157 of the Limitation Act. If no appeals are filed by the State against acquittal within the time prescribed, the accused gets a right under Section 403 Cr. P. C,, not only against the acquittal on the charge on which he was tried, but also on the charges he could have been tried under Section 236 Cr. P. C. or convicted under Section 237 Cr. P. C., subject to the power of the appellate Court, on appeal from conviction, to alter the finding to one provided under the above provisions.

When the Legislature used the word 'after' it intended to empower a substitution of one conviction for another, but certainly not a reversal of an acquittal already obtained. True it is, that a change from one conviction to another might in some cases imply a reversal of an an acquittal but where the change is permitted by the provisions of Sections 237 and 238 Cr, P. C. even where there is no appeal under Section 417 Cr. P. C., the appellate Court can exercise the powers under Section 423(1)(b) Cr. P. C. In the true sense it is not a case of reversing an order of acquittal but one' of modifying it.

In case where the appellate Court wants to reverse the finding of conviction it has to set aside the conviction and sentence and has to acquit or discharge the accused, and if it directs a retrial, it has no power to order a retrial on charges on which the accused has been acquitted. In the Full Bench judgment of Fulo Singh v. State, ILR 35 Pat 144 : (AIR 1958 Pat 170) on a review of the entire case-law on the subject, referring to the case of ILR 50 All 722 : (AIR 1928 PC 254) and the argument that their Lordships of the Privy Council did not express any view in regard to the power under Section 423(1)(h) Cr P. C., Benarji J., observed at page 165 (of ILR Pat) : (at p. 175 of AIR) :

'The implication of the view expressed by their Lordships of the Judicial Committee can hardly be overlooked by the result shat followed from the decision. The accused was charged with a major offence, but convicted of a minor one. Their Lordships proceeded on the assumption that there had been an acquittal for the major offence and held that that order could not be interfered with by the High Conn while, exercising powers under Section 439 Cr. P. C.

Their Lordships were, certainly, aware of the power of a High Court under Section 439 which included the power exercised under Section 423 subject to Sub-section (4) and, in holding that the High Court had no jurisdiction in altering a finding oE acquittal into one of conviction must have taken into consideration the powers of an appellate Court under Section 423(1)(b) of the Code of Criminal Procedure. In that view of the case, I think that the Privy Council decision applies to the present case and that a wider interpretation of Section 423(1)(b) is not warranted.

It is different, however, when the Court of Appeal alters an order of acquittal under Section 423(1)(b) in cases falling under Sections 237 and 238, Cr. P. C. when there is no dispute relating to the facts, that is, relating to the act or series of acts which constitute the offences and when the case falls within the scope of these sections it is within the jurisdiction of an appellate Court to convict an accused under a Section of which he had been acquitted. In the true sense, such an order is not one of reversing an order of acquiittal but one of modifying it, because the trial Court had proceeded on an erroneous view of the law.'

Henderson, J., in the case of Kamalakanta v. Emperor, 41 Cal WN 1112, theught 'that it was only common sense that, when once the conviction and sentence have been set aside and a retrial ordered, the whole matter should be reopened. This comment brought forth from Harries, C. J., in the case of Amalesh Chandra v. The State, : AIR1952Cal481 , the remark : 'What-ever it is, it certainly is not common sense.' In that case, the learned Chief Justice did not think it necessary to refer the case to a Full Bench as arising on the facts but ha left it no doubt that if that was necessary, he would not have had any hesitation.

Biswas, J in Kamalakant's Case, 41 Cal WN 1112, expressed the view that if effect was given to the observations of Lort-Williams, J., in Abdul Khan v. Emperor, 39 Cal WN 677. namely that each of the provisions in Section 423(1) (a) and (b) Cr. P. C., is restricted to the appeal either on conviction or acquittal as the case may be which is before the Court and that no power is given by the Section to interfere with an order of acquittal in the absence of an appeal from that order, or with a conviction in the absence of an appeal from that conviction :

'the accused would be cheating the law of its dues. Such an absurd result ought in my opinion. to be avoided, unless this is rendered imperative by the constraining provisions of the Statute.'

With great respect, we venture to say that, if at all, the spirit, of the Code is inclined towards the finality and collusiveness of the acquittal in all subsequent proceedings, subject to the limitations already indicated. Any interpretation calculated to prejudice the accused as far as possible should be avoided and must, in our view, be bereft of considerations of expediency or apprehension as to the possibility of miscarriage of justice. In the words of Lord Thankerton in the case of ILR 62 Cal 983 : (AIR 1935 PC 89)

'the jurisdiction of the Court in these matters is statutory and the Court, however admirable its intentions, should not go outside the provisions and in effect to legislate for itself.'

In : AIR1954Cal375 , K. C. Das Gupta, J., (as he then was) after referring to the cases in ILR 22 Cal 377, ILR 23 Cal 975, Nazimuddin v. Emperor, ILR 40 Cal 163,41 Cal WN 1112 and39 Cal WN' 677, disapproved of the view that in an appeal against conviction the High Court can order a retrial on the charges of which the accused was acquitted, and found it difficult to understand why it should be theught that an appeal from a conviction reopens for consideration of the Court of Appeal even the case as regards to which the accused has been acquitted and against which no party has moved the Court.

In that case, the accused was charged under Section 304 I.P.C. but was acquitted of that charge and was convicted under Section 325 Indian Penal Code sentencing him to three months' Rigoroud Imprisonment. The Sessions Judge on appeal having regard to the defects and irregularities and serious misdirections which vitiated the verdict of the jury ordered a retrial. In a revision under Section 439 Cr. P. C. to the High Court that the charge under Section 304 should be quashed it was held that the order of retrial was bad and that it must be construed as one directing a retrial on the charge of which he was convicted. While approving the observation of Harries. C. J., in : AIR1954Cal375 , it was observed at page 379 as under :

'The Court may in appeal from a conviction reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial.

The words 'conviction', 'finding' and 'sentence' are obviously interconnected. The sentence which can be reversed is a sentence on the finding of 'guilty'. There has been no sentence as regards acquittal and therefore, there is no question of reversing the sentence as regards the finding of acquittal'. Reading the words 'reverse the finding and sentence in an ordinary way, it seems to me to be clear that the legislature means :

'reverse the finding of guilty and reverse the sentence on the basis of that finding.' This view is fortified when we remember the preceding word 'conviction'. The three words 'conviction', 'finding', and 'sentence' read together make clear and good sense, namely, that there is an appeal from conviction, that the conviction is based on that finding of guilty and the sentence is based on that finding. It is this finding of 'guilty' and this sentence based on that finding which the appellate Court is empowered to reverse. Nothing else can be reversed. The necessary conclusion is 'that the finding of 'not guilty' cannot be touched.' With great respect, we are in agreement with this statement of law.

14. We may now summarise our conclusions. On the language of Section 423(1)(b), as pointed out by Ray, J. in Nayak v. Chintai Mallick AIR 1948 Pat 435 the definite article the preceding the word 'finding' both in Section 423(2)(b) as well as in Section 423(1)(b), would qualify 'the finding' indicating that it is one of conviction. As the word 'conviction' immediately precedes the words 'reverse the finding and 'alter the finding', in both the parts of clause 'b', the reversal or alteration is of a conviction, A reversal of the finding of conviction would mean and imply abrogation of that finding and the effacement of the sentence.

Consequently it empowers the Appellate Court in such an eventuality to acquit or discharge the accused or order a retrial. In the case of an alteration of the finding, the power of the appellate Court is limited by the requirement to maintain the sentence. Tn other words, maintaining the sentence is a sine qua non of the alteration of the finding. Alteration of the finding would clearly mean alteration of the finding of conviction, implying a change or substitution in the conviction from one offence to another, provided always that the sentence is maintained or reduced.

In the case of reversal and retrial, on reversal of a finding of conviction, the retrial must be limited under Clause (b) (l) of Section 423 Cr. P. C. to a charge for. which he has been convicted, because, it is that conviction which he has challenged in appeal. In such circumstances the only possible course open to the appellate Court would be, either to acquit or discharge the accused or retry him for the same offence if it finds the trial convicting him was unsatisfactory.

There is no question of retrying him on all the charges of which he was acquitted because the reversal of the order of acquittal does not arise under Section 423(1)(b) Cr. P. C. which only deals with appeals against conviction which alone can be reversed or retried or altered. The former as the subject-matter of the power under Section 423(1)(b) Cr- P. C. This view is also supported by the interpretation of the observations of the Supreme Court. In (S) : 1956CriLJ318 to which we have already referred both the appellants were convicted under Section5 of the Bombay Prevention of Gambling Act, IV of 1887, for being presen1 in gaming house for the purposes of gaining, while the 1st appellant was also found guilty of Section 4(a) of the Act for keeping a gaming house.

He was sentenced to 3 months' Rigorous Imprisonment under than Section, but no specific sentence was awarded for the offence of Section 5. The 2nd appellant was sentenced to 3 'months' rigorous imprisonment under Section5. In a revision filed by the accused, the High Court set aside the conviction of the 1st appellant under Section 4 (a) but confirmed that under Section 5 and awarded a sentence of 3 months' R. I. under that Section .

It was contended before their Lordships on behalf of the 1st appellant, that as the High Court had set aside the conviction under Section 4 (a) of the Act. it should have set aside the sentence passed on him under that Section and that it Had no power under the Code of Criminal Procedure to impose a sentence under Section5, when none such had been passed by the Magistrate. This argument was based on the terms of Section 423 Cr. P. C.

Their Lordships observed with respect to the view expressed by the High Court in Superintendent and Remembrancer of Legal Affairs v. Hos-sein Alt AIR 1938 Cal 439 that under Section 423(1)(b) Cr. P, C. the Sessions Judge could award a sen- . tence in a conviction under Section 498 where no sen-tence was awarded by the trial Court, while setting aside the conviction under Section 363 for which a sentence was awarded, that that view proceeded on a, misconception of the words 'alter the finding* in Section 423(1)(b) of Cr. P. C. Venkatrama lyer J., said at page 148:

Under Section 233 of the Code of Criminal Procedure, they have to be separately charged, and under Section 367, the judgment has to specify the offence of which and the law under which the accused is convicted. When there, is a conviction, for more offences than one there are distinct find- I ings in respect of each of them, and when Section 423(1)(b) speaks of a finding being reversed or al'bered by the Court of appeal, it has reference to the finding in respecr of each of the offences. When, therefore, the High Court set aside the conviction under Section 4 (a) and affirmed than under Section 5, there are two distinct findings, one of reversal and another of affirmance, and there is no-question of alteration.'

15. As already adverted to, having regard to the prohibition contained in Section 407 of the Code of Criminal Procedure of 1861, that there shall be no appeal from a judgment of acquittal passed by a Criminal Court, the words 'alter or reverse the finding and sentence or order' appearing in Section 419 of the same Code, do not include the power to convert a finding of acquittal into one or conviction.

If this is so, the meaning and import of the words 'reverse a finding' and 'alter a finding' under Section 423(1)(b) dealing with appeals from convictions, cannot be any the different, merely because* an appeal against acquittal has been provided under Section 417 Cr. P. C. Because a right of appeal against acquittal was conferred on the State, the powers under Section 423(1)(a) have been specifically enacted. If no appeal is filed by the State Government within the time prescribed, no right to set aside an acquittal would arise under Section 423(1)(a), nor can Section 423(1)(b) be made to serve the ends of Section 423(1)(a).

The mere fact that Section 423 Cr, P. C. has been amended by the addition of Sub-section I-A autherising the High Court to enhance a sentence after giving an opportunity to the accused to show cause against the enhancement cannot admit of a different interpretation as contended by the learned Public Prosecutor. This provision is designed to vest the power of enhancement with or without altering the finding of conviction and hence, it cannot affect the interpretation of the provision which otherwise are not susceptible of the sugges-ted interpretation in Section 423(1)(b), as some of the judgments referred to have done.

If the appellate Courts subordinate to the High Courts also could, witheut any appeal from acquittal being filed, suo motu convert acqvn'ttals to convictions, a result would ensue which is contrary to tie express provisions of the Code, for, even where the subordinate appellate Courts have been given power of revision to call for records' with a view to satisfy themselves as to the correctness, legality or propriety of the order, no final orders can be passed except to report to the High Court.

If so, to rectify an obvious illegality in the inding or orders, it cannot be assumed that the Legislature intended to confer a power to set aside an acquittal by exercise of the powers under Sec-ton 423 (1) (b) Cr. P. C. That apart to direct a retrial on charges of which an accused has been acquitted will be to affect his vested rights of pleading Autre Fois Acquit not only on these charges, but on the same facts, on offences for which different charges from the one made against him might have been made under S, 236 or for which he might have been convicted under Section 237. In our view. Sections 403, 417, 423 and 439 Cr. P. C, should be considered together and if so considered, where an accused is acquitted and no appeal has been filed against his acquittal under Section 417 Cr. P. C., and the revisional power under Section 439 Cr. P. C., subject to its limitations has not heen exercised to set aside that acquit al, the accused gets a vested right to plead under Section 403 Cr. P. C.

That right can only be affected in the case of an appeal by the State under Section 417 Cr. P. C., or by the exercise of the powers by the High Court under Section 439 suo motu or on an application by the complainant and certainly not by the State as it is barred by sub-clause (5) of the said Section . In our view, as observed by the Privy Council in Sambasivam's case 63 Mad LW 597 and the Supreme Court in Pritham Singh's case (S) : 1956CriLJ805 unless there is an adjudication on the acquittal, it remains in force and is binding in all subsequent proceedings between the parties to the adjudication in much the same way as the principle of res judicata in Civil Cases.

16. In the result, our answer to the first question is that except in exercise of the revisional powers under Section 439 Cr, P. C., subject to the limitations prescribed therein, it is not open to the High Court to order a retrial on the charges on which the accused was acquitted by the trial Court in an appeal by the accused against his con-viction, theugh it is empowered to reverse the conviction and order a retrial on that charge alone Our answer to the second question is that , it is open to the accused, to plead the bar of autre fois acquit under Section 403 Cr. P. C. notwithstand ing the order of the High Court, unless there 1 an adjudication on the acquittal by the High Court either under Section 423(1)(a) or 439 Cr. P. C. We therefore, allow the revision and hold that the plea of autre fois acquit under Section 403 Cr. P. C is available to the petitioner; as such, the retrial for offences under Sections 302 and 393 I.P.C., of which charges she was already acquitted, cannot be pro ceeded with,

17. Before we part with this reference, w would like to acknowledge the assistance give by learned Advocate-General, who has placed the rival contentions than could be urged in this case. We would also like to advert to the stand taken by the learned Public Prosecutor that it is he who represents the State while the Advocate-General is appearing only as an Amicus Curiae, and has, therefore, addressed his arguments as if he is appearing on the opposite side to that of the Advocate-General.

The position taken up by him, in our considered view, has no warrant because a reference to the Precis of Standing Orders of the Government relating to the Law Officers of the Government, G.O. No. 4100, Law (General) dated 6-11-1951 made under Article 165 (2) of the Constitution of India, would show that one of the duties of the Advocate-General is to give advice to the Government Pleader, Public Prosecutor and the Crown Prosecutor and similarly the Public Prosecutor is regarded as the assistant to the Government and in case of difficulty may apply to that office for advice.

He is also to advice the Advocate-General whenever in a case pertaining to his duties he is required to do so. The Advocate-General is further to assist the High Court whenever required by the Hon'ble tthe Chief justice in cases of Special importance or difficulty, on occasions of inquiries made by the Court into the conduct of legal practitioners. These standing orders make it clear that the Advocate-General is the Chief Law Officer of the Government and the Public Prosecutor is regarded as the Assistant to the Advocate-General.

Therefore, where the Advocate-General is called upon to appear in any case of importance, the Public Prosecutor cannot as is contended by him be considered as separately representing the State while the Advocate-General is a mere Amicus Curiae. In these circumstances, we cannot appreciate this contention as, in our view, the responsibility to represent the State would be upon the Advocate-General assisted by the Public Prosecutor.